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Supplementary Affidavit - Kimeli.doc

Supplementary Affidavit - Kimeli.doc

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A former ICC prosecution witness asking the High Court not to allow for the arrest of Walter Barasa since he cannot get a fair trial at The Hague.
A former ICC prosecution witness asking the High Court not to allow for the arrest of Walter Barasa since he cannot get a fair trial at The Hague.

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Published by: Oliver Generali Mathenge on Oct 28, 2013
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10/28/2013

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REPUBLIC OF KENYAIN THE HIGH COURT OF KENYA AT NAIROBICONSTITUTIONAL PETITION NO. 488 OF 2013IN THE MATTER OF ARTICLES 1, 2, 3, 10, 20, 21, 22, 23, 258 AND 259 OFTHE CONSTITUTION OF KENYA, 2010ANDIN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTSAND FREEDOMS UNDER ARTICLES 27, 28, 29, 35, 47 AND 50 OF THECONSTITUTIONANDIN THE MATTER OF THE INTERNATIONAL CRIMES ACT, 2008 IN RESPECT OFTHE REQUEST FOR ARREST AND SURRENDER OF THE PETITIONER TO THEINTERNATIONAL CRIMINAL COURT PURSUANT TO THE ROME STATUTUE OFTHE INTERNATIONAL CRIMINAL COURTANDIN THE MATTER OF THE ENFORCEMENT OF WARRANT OF ARREST ISSUEDBY THE INTERNATIONAL CRIMINAL COURT AGAINST THE PETITIONER ON 2
ND
AUGUST, 2013BETWEENWALTER O. BARASA PETITIONERANDTHE CABINET SECRETARY MINISTRY OF INTERIORAND NATIONAL CO-ORDINATION 1
ST
RESPONDENTHON. ATTORNEY GENERAL 2
ND
RESPONDENTTHE DIRECTOR OF PUBLIC PROSECUTIONS 3
RD
RESPONDENTTHE INSPECTOR GENERAL OF POLICE 4
TH
RESPONDENT
SUPPLEMENTARY AFFIDAVIT OF SAMUEL KIMELI KOSGEI FOR THEPETITIONER
I,
Samuel Kimeli Kosgei,
of Post Office Box Number 350, Turbo and aresident of Nandi County in the Republic of Kenya do hereby make oath andstate as follows.1.
THAT
I am a Kenyan citizen (ID No. 12641348. I was born on 12
th
April,1972. I am a resident of Kaplemor village, Kipkarren Division, Nandi NorthDistrict of Nandi County.2.
THAT
I agreed to become a prosecution witness in the case against Hon.Henry Kosgei, Hon. William Ruto and Mr. Joshua arap Sang before the
1
 
International Criminal Court sometime in the year 2009. Upon agreeing tobe a Prosecution Witness in the said ICC Case, I left Eldoret town and wentto stay in Nairobi under the protection of the Kenya National Commissionon Human Rights (KNCHR) and the Independent Medical Legal Unit (IMLU).3.
THAT
in January, 2011 my family and I were flown to the Netherlandswhere we stayed in several locations. During my stay in Netherlands myNational Identity Card, Passport, Photographs and all other identificationdocuments belonging to me and my family were confiscated by ICCofficials apparently to restrict or control our movements and avoid contactwith other persons.4.
THAT
whilst a witness in the Netherlands I received periodic paymentsfrom the Office of the Prosecutor (OTP) whenever I attended any meetingon matters touching on evidence in the first ICC Kenyan Case. The saidpayments were in addition to what I received from the Victims andWitnesses Unit (VWU).5.
THAT
prior to the confirmation hearing the OTP organized severalmeetings where I and other witnesses were called into various hotelvenues and were instructed to either add, vary or subtract some of thecontents of our earlier statements in order to harmonize them and ensurethat they corroborate each other’s testimonies. These meetings wereheld among other dates on 6
th
, 7
th
and 8
th
June, 2011 at Holiday Inn Hotelin Laiden and the proceedings were conducted and coordinated by twopeople I knew as Alex and Emma. There were other meetings on 27
th
July,2011 at the Van Der, Valk Ecrusief Hotel and a whole day meeting on 29
th
August, 2011 at the Mercure Hotel in Amsterdam. I am aware that theWitnesses who attended those meetings are the ones who madestatements that were subsequently used by the OTP in Court proceedingsbefore the Pre-trial Chamber in the ICC Case facing Hon. Henry Kosgei,Hon. William Ruto and Mr. Joshua arap Sang.6.
THAT
I declined the request of the OTP to change my Statements andexplained to them that I considered it unlawful and morally objectionableto give false testimony but they were unwilling to let my testimony standas I had previously recorded it. I threatened to withdraw as a Witness if they continued to pressurize me to alter my Statement to include anymatters that were either false or strange to me. Subsequently, I wascharged in Court with the offences of mistreating my children. The Courtfound that I was irresponsible and ordered that my children be takenaway by the Child Care Services, Netherlands.7.
THAT
whenever I demanded my children from the Child Care Servicesthey would tell me that I consult the ICC. Therefore, I requested the OTPand Victims and Witnesses Unit of the ICC to help me get back myChildren. A lawyer making with the OTP known as Cynthia Tai called totell me that if I accepted to sign the altered statement I had previouslyrefused to sign, ICC would help me to get back my children. However, I
2
 
maintained my refusal to sign the altered statement. I have documentsto attest this information but they are in Dutch language – if the Courtrequires them I pledge to offer copies of the same after they aretranslated into English.8.
THAT
after a lot of pull and push over the suffering my family and I wereundergoing in the Netherlands, we finally left Netherlands for Kenya on26
th
October, 2012.9.
THAT
in the backdrop of the foregoing and following soul searching inFebruary, 2013 I decided to withdraw as a Prosecution Witness in the firstKenyan Case before the ICC. In this regard, I swore on affidavit on 7
th
February, 2013 to confirm my withdrawal and reasons therefor. Annexedhereto marked “
SMK1
” is a true copy of the said Affidavit I swore on 7
th
February, 2013.10.
THAT
by a letter dated 19
th
February, 2013 addressed to myadvocates, Ms. Gicheru & Company, the OTP through Cynthia Tai, TrialAttorney, acknowledge receipt of my affidavit aforementioned. Annexedhereto marked “
SMK2
” is a true copy of the said letter of OTP dated 22
nd
February, 2013.11.
THAT
despite my withdrawal as a Prosecution Witness the OTP did notstop to persuade me to reconsider my position and remain a witness. Asexample, just before the General Elections held on 4
th
March, 2013 I wascalled thrice by officers from the OTP who promised to buy me anapartment in South Africa or one acre of land plus a house on MbeziBeach in Tanzania. I declined the said offer.12.
THAT
on or about 15
th
March, 2013 at 10.30 a.m. I received a call fromCynthia Tai urging me to accept the offer from the OTP and agree totestify on the basis of the Statement I had previously declined to sign.13.
THAT
on or about 28
th
February, 2013 I met two officers from the OTPwho introduced themselves to me as Mr. Paul from Lebanon and Mr.Silverstan from Burkina Faso at Kivi Hotel and Hebron Hotel in Nairobi. They bought me alcoholic drinks as they tried to convince me to recantthe contents of the aforementioned affidavit I swore on 7
th
February, 2013and to continue being a witness in the first ICC Kenyan Case.14.
THAT
thereafter, I informed my advocates aforementioned about thecalls and contacts that ICC officials were trying to make with my wife andI. Consequently, my father, wife and I decided to swear affidavits to re-confirm my categorical position on withdrawal as a witness and to protestabout the efforts of ICC officials to coerce and/or induce me to change myposition. The said three affidavits were forwarded to the ICC through myadvocates’ letter dated 18
th
March, 2013. Annexed hereto marked
SMK3
” is a bundle containing true copies of my advocates’ letter dated
3

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